Love v. Allis-Chalmers Corp.

• Citation: 362 So.2d 1037
• Decision Date: 04 October 1978
• Docket Number: No. 77-852,ALLIS-CHALMERS,77-852
• Court: Florida District Court of Appeals
• Parties: Bill LOVE, Appellant, v.CORPORATION, W. D. Equipment Rentals & Sales, Inc., a Florida Corporation, Richard Dowds, W. M. Perine and Wilma Perine, Appellees.

Page 1037

362 So.2d 1037

Bill LOVE, Appellant, v. ALLIS-CHALMERS CORPORATION, W. D. Equipment Rentals & Sales, Inc., a Florida Corporation, Richard Dowds, W. M. Perine and Wilma Perine, Appellees.

No. 77-852.

District Court of Appeal of Florida, Fourth District.

Oct. 4, 1978.

Irby G. Pugh of Barco & Pugh, Orlando, for appellant.

Robert D. Melton, Orlando, for appellees.

DOWNEY, Chief Judge.

Appellee, Allis-Chalmers, the holder of a judgment dated November 19, 1975, against W. M. Perine and others, obtained a writ of execution and had the sheriff levy upon a machine known as a front-end loader found in the possession of Perine. Appellant, Bill Love, filed a suit for replevin claiming ownership and right to possession of the loader; the suit was dismissed. On May 7, 1976, Love attempted unsuccessfully to intervene in the original litigation giving rise to the judgment in question. Also on May 7, 1976, Love filed a motion for stay of execution, incorporating three affidavits which will be discussed hereinafter. On May 13, 1976, Love then sought relief in the Federal District Court seeking to enjoin a sale pursuant to the levy, and asserting the unconstitutionality of Section 56.16, Florida Statutes (1975). When Love's application for temporary injunction was denied he posted a bond on May 15, 1976, as required by Section 56.16, Florida Statutes (1975), and a proposed sheriff's sale was prevented.

On May 10, 1976, appellee took Love's oral deposition and on May 17, 1976, Love was served with interrogatories, a request for admissions and a request to produce. When Love did not respond to either the interrogatories or the request to produce appellee obtained an order compelling discovery. Love also did not timely answer the request for admissions, but did file sworn answers on September 3, 1976.

On September 16, 1976, appellee moved for summary judgment relying primarily on Love's failure to timely answer the request for admissions which left the matters admitted on the record.

On November 2, 1976, Love requested leave to amend the answers to the requests for admissions. Without ruling on that motion on December 13, 1976, the trial court entered summary judgment in favor of appellee. Love moved for a rehearing attaching three additional affidavits which stated the loader was owned by Love. The motion for rehearing was denied and this appeal ensued.

This record is replete with evidence that there was a genuine issue of fact as to the ownership of the front-end loader, and an issue of fact as to appellee's right to sell the loader to satisfy its judgment. The problem involved is trying to sort out what evidence was appropriate for consideration by the trial court on the motion for summary judgment. The parties have devoted a good portion of their briefs to a discussion of the evidence attached to the motion for rehearing but we do not find it necessary to reach the problems involved in that phase of the case. In our opinion the record before the trial court was such that the order granting summary judgment should not have been entered; the record reflected a genuine issue of fact.

When the trial court considered the motion for summary judgment, the record contained Love's deposition, Love's answers to interrogatories, Love's sworn response to the request to produce, and the affidavits of Love, Perine and Strong, which were attached to the motion for stay of execution. In sum, those pleadings, depositions, etc., showed that Love claimed he had been the owner of the loader for over a year; Bill Lovell bought it from Allis-Chalmers for Love; Love had been paying Lovell for...